The Fourth Circuit has just reversed — in Snyder v. Phelps — the $5 million intentional infliction of emotional distress / invasion of privacy verdict against the Phelpsians (that's the "God Hates Fags" group) who picketed the funeral of a slain soldier.

The court essentially concluded that, at least where speech on matters of public concern is involved (see pp. 25-26), the First Amendment precludes liability based on "statements on matters of public concern that fail to contain a 'provably false factual connotation'" (see pp. 16-20). This applies not just to libel liability, but also liability for intentional infliction of emotional distress and intrusion upon seclusion (the specific form of invasion of privacy alleged here). If the speech fits within "one of the categorical exclusions from First Amendment protection, such as those for obscenity or 'fighting words'" (p. 18 n.12) it might be actionable. But if it's outside those exceptions, then it can't form the basis for an intentional infliction of emotional distress or intrusion upon seclusion lawsuit — regardless of whether it's "offensive and shocking," or whether it constitutes "intentional, reckless, or extreme and outrageous conduct causing ... severe emotional distress" (p. 23).

I think the court was quite right, for the reasons I gave in my earlier criticisms of the district court's allowing the verdict. In particular, the decision helps forestall similar liability for other allegedly outrageously offensive speech, such as display of the Mohammed cartoons (or other restrictions on such speech, such as campus speech codes' being applied to punish display of the cartoons).

The court did leave open the possibility that some content-neutral restrictions on funeral picketing may be imposed (p. 32), but it didn't discuss this in detail. For more on that, see here.

One of the three panel members, Judge Shedd, didn't reach the First Amendment issue, but concluded that (1) there wasn't intrusion upon seclusion under Maryland law because the protest was in a public place, and not even very near the funeral (p. 40), (2) the protest was not "extreme and outrageous" enough for purposes of the emotional distress tort because it was "confined to a public area under supervision and regulation of local law enforcement and did not disrupt the church service."

This is one of those situations where I am of two minds. On the one hand, this is clearly the right result as a matter of law. On the other hand, it makes me happy to live in a place where lawyers don't "rule the world"; this way of thinking about the phenomenon of funeral picketing strikes me as excessively legalistic. Like that recent German demonstrations post, I think the behaviour under discussion here is several orders of magnitude more asinine than those Mohammed cartoons, which is why I think the latter should be protected while the former should not. There has to be a common sense way of dealing with this. Possibly, the answer is not handing the problem over to lawyers.

What do you mean? Would you just let the funeral party attack the picketers?

One possibility would be to write a general rule that demonstrations may not disturb the public order, and then leave it to the police to use their reasonable judgement, with a much more modest review by the courts. That would be unthinkable in the US, where a law isn't really a law unless you can go to court to claim it, but it might not be such a bad idea. These Phelpsians picket the funeral, a few cops stand there to see if they're causing a disturbance, and in case they do, they tell the picketers to go picket a few hundred yards down the road. The court says that they won't touch the police's decision unless they clearly acted unreasonably, and that's that.

[For the record, I'm just musing. Like I said, I'm of two minds on this problem.]

I was struck by footnote 8, which added to the court's discussion as to why it ought not to consider the issue of sufficiency of the evidence, which was that the appellant had waived the issue by not presenting it in his brief. Instead, the issue was presented in an amicus brief.

In this regard, we further observe that recognition of the right of an amicus to present an issue that the parties have no desire to further litigate would constitute judicial recognition of a lawyer relief rule—inviting lawyers and nonparties otherwise without standing to seek out and engage in mischief that would readily be likened to barratry, champerty, or maintenance.

Bull Connor: "Of course they were disturbing the public order. They were standing there being black!"

Well, if they've got nothing better than that, that would be an example of "unreasonable" police action. Generally, of course the scope for abuse by the police is the obvious down side. Then again, you have to trust someone, and the question is whether the disadvantage of having the judge make the decision based only on second-hand accounts and applying broad sweeping rules is smaller than the advantage that the judge is presumably more reliable than the police.

Remember, what I was proposing was not a full criminal justice situation, but rather some freedom for the police to give instructions to remedy a breach of the peace even when speech is involved, with a criminal trial only if these instructions are not followed.

In my hometown, a handful of Phelpsians picketed the funeral of a young man who died in action in Iraq. About 100 members of the Patriot Motorcycle Club (or somesuch, I'm blanking on the official name) in turn surrounded and counter-picketed the protesters in a way only bikers can.

Seemed like a fair response, and probably wiser than beating the benighted people within an inch of their lives -- which is what I would have done if it had been my brother being buried.

Picketing servicemembers' funerals is the same as using "fighting words". Neither is protected.

Yes, that's why I keep mentioning the problem of a legalistic approach. Not only do courts have to judge events based on (verbal) accounts of what happened, they also have to use fairly general rules to decide their cases. Fighting words is an exception to the generalest of rules, i.e. the rule of the first amendment. What Bob from Ohio is proposing here is a kind of little step-sibling to the exception-rule, a category of cases that aren't literally about fighting words, but that are treated as if they are. Categories, sub-categories and sub-sub-categories. That's what you get if you let lawyers run the country.

(In terms of prof. Kerr's post earlier today about "Should Laws Be Simple or Complicated?", this case and Bob's comment show what happens if you put judge complicated Karen in charge of this problem.)

Bob from Ohio: I blogged about why funeral picketing doesn't constitute fighting words here; and the Fourth Circuit noted that "There is no suggestion that the speech at issue falls within one of the categorical exclusions from First Amendment protection, such as those for ... 'fighting words.'"

As to your assertion that, "Let's see how these judges would stand for their kids funerals being picketed. They'd carve out an exception in a heartbeat," I'm not sure your prediction is correct. The judges aren't fools -- presumably they must have realized that the rules they're applying here would apply to their family members and their friends. But in any event, I assume that a judge would be recused when the case involves the picketing of the judge's child's funeral, and presumably a plaintiff who is also the judge's family member. And one reason for such recusals, I take it, is precisely that "Would you like it if it happened to your own child?" is not the right question to ask when you're trying to decide what the legal rule ought to be.

upon the moment I hear Phelps is dead, I, for one, will drop whatever I am doing and book the next flight to Topeka and join the multitudes who will rejoice in his death. I know my friends will improvise a Gay Day parade, and we will commit acts of public lewdness.

I think the concurrence was correct here. The defendants manipulated their appeal in an effort to force the court to reach the First Amendment question by in effect stipulating to their opponent's state-law case. As a result, the court issued what is quite likely an advisory opinion about a stipulated but probably nonexistent tort rather than about a law Maryland actually has. I think the quote from Judge Sentelle of the D.C. Circuit is quite apt:

Our colleagues question the "judicial power" of a
federal court to decide an issue of law concededly
dispositive of the case where parties have not raised
the issue. I think it most apparent that federal courts
do possess this power. The alternative is that the
parties could force a federal court to render an advisory
opinion. What the dissenters in effect argue is
that the parties can stipulate to the state of underlying
law; frame a law suit, assuming that stipulation;
and obtain from the court a ruling as to what the otherwise
dispositive law would be if the stipulated case
were in fact the law. Indeed, that is precisely what
would have occurred in this case had the panel not,
sua sponte, raised the question

A court doesn't have to accept that the law is what the parties say it is: it has an independent duty to determine the law on its own. If the parties stipulate that the law says something but the court is convinced the law is otherwise, the court is not bound by the stipulation.

This is particularly the case where, as here, a party has an interest in getting a constitutional question decided and waives its state-law case in an effort to force the court into reaching the constitutional issue. The fact that the parties both agree state law says something doesn't mean it actually does or that the court is bound to act as if it does.

That said, the difficulty here is that funerals, like sexual matters, are among those occassions where humans are vulnerable and their reasoning can be clouded, and hence where there may be a special likelihood of disturbing the peace and other harms. It's not clear to me that states' "time place and manner" powers prevent them from enacting a general, content-neutral ordinance which takes this special vulnerability into account and places limits on demonstrations in or near cemetaries and funerals.

I don't think the law has to always pretend that people are automatons.

It's not clear to me that states' "time place and manner" powers prevent them from enacting a general, content-neutral ordinance which takes this special vulnerability into account and places limits on demonstrations in or near cemetaries and funerals.

The issue here, AFAIK, wasn't whether such prohibitions were legal. From what I read. Phelps didn't violate any regulations or laws; he was sued for tortious behaviour.

"Speech with a primary purpose to shock and disgust mourners at a funeral without any redeeming political, cultural or social value" is not protected.
-----
Phelps could claim that opposition to homosexuality has political, cultural, or social value; try again.

So under the proposed formulation (whether or not it includes "redeeming"), who would decide what the primary purpose is? Who would decide what the value is of the allegedly shocking and disgusting speech? Whose values matter?

The analysis treads on the same ground as that used to appraise whether something is "pornographic" and has no "redeeming" value (to whom?). I suppose that it is possible to know it when you see it with regard to pornography, but it is not so clear when the complained-of speech is in a different context. I submit that almost any formulation will result in a prior restraint because it will cause a rational person (or even an irrational one who is advised by a rational lawyer) to engage in self-censorship because of uncertainty as to what is purportedly forbidden.

although cemetaries themselves have hardly been traditional public forums, any "time, place, and manner" restrictions on a demonstration in the vicinity of a funeral would nonetheless likely have to be independent of the content of the demonstration or who it's directed against.

And there could be side effects. The local Klu Klux Klan, animal experiment lab, abortion clinic, and other commonly demonstrated-against institutions might decide to set up their offices right next to the cemetary in order to take advantage of any demonstration-free zone.

I submit that almost any formulation will result in a prior restraint because it will cause a rational person (or even an irrational one who is advised by a rational lawyer) to engage in self-censorship because of uncertainty as to what is purportedly forbidden.

I cannot imagine any reason why anyone other than the immediate family should object to a Phelps-like demonstration at the funeral or memorial service for Susan Atkins, who sliced up Sharon Tate.

Leaving aside the moral equating of picketing the funeral of a murderer and picketing the funeral of a gay man, the law might reflect some concern for those stupid relatives.

I find this decision especialy odd in light of 'treatment of corpses' laws.

I am a BIG denfender of 1st rights, but I cannot see how intentional and unnecessary infliction of emotional harm on specifiable groups in specifiable situations [persons attending funerals] could not be a plausible constraint on those rights.

I don't see what the problem with content-neutral restrictions would be. In other words, nobody should be picketing at the entrance or on the grounds of a cemetary, no matter what the content, because it's important to have an unimpeded passage there for processions. I mean, if we can stop traffic for the procession, I don't see the problem with asking anyone else to stand clear as well. And then they can picket to their hearts' content.

I realize that the question is both silly and rhetorical, but honestly: if a funeral turns into a brawl, the bereaved and common decency have lost, and Phelps and his ilk have won, even if they do get (wholly deservedly) beaten within an inch of their lives.

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